Shafin A R Islam v Minister for Immigration and Citizenship

[2011] HCASL 200

SHAFIN A R ISLAM
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2011] HCASL 200
S305/2011

1. The applicant entered Australia as the holder of a tourist visa on 14 November 2005 and has remained in Australia since that date under various temporary visas.  On 28 January 2011, the applicant applied for citizenship under the Australian Citizenship Act 2007 (Cth) ("the Act").  A delegate of the first respondent ("the Minister") refused the application on 14 February 2011. The second respondent, the Administrative Appeals Tribunal ("the Tribunal"), affirmed the delegate's decision on 20 May 2011.

2. The application was refused on the basis that the applicant did not satisfy the requirement in s 21(2)(b) of the Act that he be a permanent resident at the time of making the application. Accordingly, the Tribunal dismissed the proceedings pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") on the basis that the claim was frivolous and vexatious.

3. The applicant "appealed" to the Federal Court (Bennett J) under s 44 of the AAT Act, on the grounds, inter alia, that the Tribunal erred in not taking into account the obligation of the Minister to consider the discretionary matters set out in s 22(6) of the Act when reviewing his application for citizenship. On 12 August 2011, Bennett J dismissed the appeal on the basis that upon the proper interpretation of s 22(6) of the Act, it was clear that the discretion conferred by that sub-section did not apply to the question whether the applicant met the eligibility criteria in s 21(2)(b).

4. The applicant seeks special leave to appeal to this Court against the decision of Bennett J, that is to say from a single judge of the Federal Court exercising the original jurisdiction of the Federal Court.  No such appeal may be brought to this Court (Federal Court of Australia Act 1976 (Cth), s 33(2)) and the application for special leave is incompetent. We add that in any event, there are no prospects of success on any appeal as no error is shown in the decision of the Federal Court. Special leave is refused.

5. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

W.M.C. Gummow
1 December 2011 S.M. Kiefel